r

FILED

JAN 0 8 2001 THOMAS 0. HALL

IN THE SUPREME COURT OF FLORIDA

CASE NO. 97,008

MARK DEAN SCHWAB,

Appellant,

v.

STATE OF FLORIDA

Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT FOR BREVARD COUNTY,

STATE OF FLORIDA

REPLY BRIEF OF APPELLANT

Robert T. Strain Florida Bar No. 325961 Assistant CCRC

Denise L. Cook Florida Bar No. 0648833 Assistant CCRC

CAPITAL COLLATERAL REGIONAL

3801 Corporex Park Drive Suite 210 Tampa, FL 33619-1136 (813) 740-3544 COUNSEL FOR APPELLANT

COUNSEL - MIDDLE REGION

TABLE OF CONTENTS PAGE

TABLEOFCONTENTS. . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv

ARGUMENT I

THE TRIAL COURT ERRED IN DENYING MR. SCHWAB A NEW TRIAL PURSUANT TO HIS MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION IN FAILING TO FIND THAT JUDGE RICHARDSON SHOULD HAVE RECUSED HIMSELF UPON HIS OWN MOTION.. . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT I1

THE LOWER COURT'S DENIAL OF APPELLANT'S POSTCONVICTION MOTION WAS ERRONEOUS WHERE MR. SCHWAB PRESENTED EVIDENCE THAT HE WAS DENIED A FAIR AND IMPARTIAL TRIAL DUE TO JUDICIAL BIAS PRIOR TO AND DURING HIS TRIAL IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. . . . . 5

ARGUMENT I11

MR. SCHWAB DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HIS RIGHT TO A JURY TRIAL, AND THE TRIAL COURT ERRED BY DENYING MR. SCHWAB A NEW TRIAL IN VIOLATION OF MR. SCHWAB'S FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT IV

THE LOWER COURT ERRED IN DENYING RELIEF ON MR. SCHWAB'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS AT GUILT PHASE IN VIOLATION OF HIS FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. . . . . 9

A. DEFENSE COUNSEL FAILED TO INVESTIGATE WAIVER OF JURY TRIAL AND MADE MISREPRESENTATIONS TO MR. SCHWAB REGARDING JUDGE RICHARDSON. . . . 9

B. DEFENSE COUNSEL FAILED TO MOVE FOR CHANGE OF VENUE.. . . . . . . . . . . . . . . . . . 14

i

C. DEFENSE COUNSEL MADE MISREPRESENTATIONS TO MR. SCHWAB, THEREBY PREVENTING HIM FROM SEEKING TO RECUSE JUDGE RICHARDSON. . . . . . . . . . 16

D. DEFENSE COUNSEL FAILED TO ENSURE THAT A RELIABLE TRANSCRIPT OF MR. SCHWAB'S PRETRIAL PROCEEDINGS AND CAPITAL TRIAL WAS PREPARED AND FAILED TO DESIGNATE THAT ALL PROCEEDINGS BE TRANSCRIBED FOR APPELLATE REVIEW. . . . . . . . . . . . . . . . . . 17

ARGUMENT V

THE LOWER COURT'S RULING FOLLOWING THE POSTCONVICTION EVIDENTIARY HEARING WAS ERRONEOUS WHERE MR. SCHWAB PRESENTED EVIDENCE THAT HE WAS DENIED EFFECTIVE ASSISTANCE AT THE PENALTY PHASE OF HIS TRIAL IN VIOLATION OF HIS FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION. . . . . . . . 19

A.

B .

C .

D.

ARGUMENTS VI

DEFENSE COUNSEL PRESENTED MR. SCHWAB'S FATHER AS A MITIGATION WITNESS KNOWING THAT MR. SCHWAB'S FATHER WOULD DENY CHILDHOOD ABUSE.19

DEFENSE COUNSEL FAILED TO INVESTIGATE THE WAIVER OF THE PENALTY PHASE JURY. . . . . 20

DEFENSE COUNSEL FAILED TO NEUTRALIZE THE STATE'S AGGRAVATING CIRCUMSTANCES BY FAILING TO INVESTIGATE MR. SCHWAB'S PRIOR CONVICTION AND BY STIPULATING TO TWO AGGRAVATING CIRCUMSTANCES. . . . . . . . . . . . . . 22 DEFENSE COUNSEL FAILED TO PROVIDE THE ASSISTANCE OF A COMPETENT MENTAL HEALTH EXPERT. 2 3 . . . . . . . . . . . . . . . . .

- XI . . . . . . . . . . . . . . . . . . . 24

CONCLUSION AND RELIEF SOUGHT . . . . . . . . . . . . . . . . 24 CERTIFICATE OF FONT SIZE AND SERVICE . . . . . . . . . . . . 2 5

.. 11

TABLE OF AUTHORITIES

PAGE ~

Trawick v. State, 473 So.2d 1235 (Fla. 1985) . . . . . . . . . . . . . . 23

Colina v. State, 570 So.2d 929 (Fla. 1990) . . . . . . . . . . . . . . . 23

Cottle v. State, 733 So. 2d 963 (Fla. 1999) . . . . . . . . . . . . . . . . 3

Delap v. State, 350 So.2d 462 (Fla. 1977) . . . . . . . . . . . . . . . 18

~

Griffin v. Illinois, 351 U.S. 212 (1956) . . . . . . . . . . . . . . . . . . 18

Kimmelman v. Morrison, 477 U.S. 365 (1986) . . . . . . . . . . . . . . . . . . 15

Maharai v. State, 684 So.2d 726 (Fla. 1996) . . . . . . . . . . . . . . . . 5

Mulliqan v. Kernp, 771 F.2d 1436, 1442 (1lth Cir. 1985) . . , . . * * . . 15

N e a l y v. Cabana, 764 F.2d 1173, 1178 (5t" Cir. 1985) . . . . . . . . . . 15

Nixon v. Sinqletary, 758 So.2d 618, 625 (Fla. 2000) . . . . . . . . . . . . 22

I Patton v. State, 2000 WL 1424526, SC 89.669 (September 28, 2000) . . . . . 6

Pope v. State, 441 So.2d 1073 (Fla. 1983). . . . . . . . . . . . . . . 23

Porter v. Sinqletary, 49 F.3d 1483 (llth Cir. 1995) . . . . . . . . . . . . . . 5

State v. Leroux, 689 So. 2d 235 (Fla. 1997) . . . . . . . . . . . . . . . . 3

Wilson v. State, 2000 WL 640572 (Fla, A p p . 2nd DCA 2 0 0 0 ) . . . . . . . . . 3

... 111

Zeiqler v. S t a t e , 4 5 2 So .2d 5 3 7 (Fla. 1984) . * . . . . . . . * . . . . . 2

iv

ARGUMENT I

THE TRIAL COURT ERRED IN DENYING MR. SCHWAB A NEW TRIAL PURSUANT TO HIS MOTION TO VACATE JUDGMENTS OF CONVICTION AND SENTENCE IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION IN FAILING TO FIND THAT JUDGE RICHARDSON SHOULD HAVE RECUSED HIMSELF UPON HIS OWN MOTION.

On page 9-10 of Appellee’s Answer, Appellee quotes the trial

court’s order denying relief where the trial judge writes: “All of

the facts raised by Defendant in his motion were known prior to

trial, and therefore, this issue could have been addressed on

direct appeal.” The assistant state attorney affidavits regarding

judicial bias were known prior to trial and were part of the record

on appeal. However, testimony at the evidentiary hearing (that

Mr.Schwab’s attorneys made misrepresentations to him regarding

Judge Richardson that caused Mr. Schwab to not seek recusal of

Judge Richardson) was not a part of the record.

During the evidentiary hearing Mr. Onek testified that he told

Mr. Schwab that Judge Richardson had never sentenced anyone to

death (PC-R. 24-25). He then testified that, at the time of Mr.

Schwab’s trial, Judge Richardson was an unknown entity on the bench

(PC-R. 25) and had never done any death penalty trials (PC-R. 79) *

Mr. Schwab‘s testimony confirmed that he was told by Mr. Onek that

Judge Richardson had never before sentenced anyone to death and was

of the belief by Mr. Onek‘s statement that Judge Richardson had

1

presided over other capital cases, but didn't sentence anyone to

death (PC-R. 145). Had Mr. Schwab known that Judge Richardson had

never had a capital case where the State sought the death

penalty(PC-R. 145), he never would have waived j u r y trial and would

have sought Judge Richardson's recusal (PC-R. 145). While the

judicial bias issue--with respect the state a t t o r n e y affidavits-

-could have been addressed on direct appeal,' the issue regarding

the misrepresentations by trial counsel was not within the record

and could not have been a direct appeal issue.

Also on page 10 of Appellee's b r i e f , Appellee cites Zeisler v.

State, 452 So.2d 537 (Fla. 1984) for the proposition that the f a c t s

regarding judicial bias were known prior to the close of trial and,

therefore, they could have been raised on direct appeal and were

not cognizable in a 3.850 motion.' Yet, further along in Zeiqler

this Court (attempting to serve the ends of justice) held, "We also

hold that, although the allegation of bias is based on a fact newly

discovered by the defense, it is an issue p r o p e r l y considered in

the rule 3.850 motion in this instance." Id. at 540. While newly

discovered evidence should be addressed in an application for a

'Undersigned counsel simultaneously filed a s t a t e habeas petition with the initial brief alleging ineffective assistance of appellate counsel for failing to raise t he j u d i c i a l bias issue on d i r e c t appeal.

21n Zeiqler, there was one statement by t h e t r i a l judge that was not known by Defense Counsel at the close of trial. The t r i a l judge supposedly made the following statement to the state attorney: "Bob, you get me one first degree murder conviction and 1'11 fry t he son of a bitch." Id. at 539.

2

discovered evidence should be addressed in an application for a

writ of error corarn nobis, Id. at 540, this Court wrote:

[ I l f the statement was made, it was certainly within t h e knowledge of t h e trial court a t the time of the trial and Zeigler would therefore be denied a writ of error coram nobis if we treated this appeal as such. This would have the unfortunate result of leaving an appellant with no remedy when there is possible misconduct or bias on the part of the trial judge relating to sentencing and discovered after trial. The law does not intend such unjust results, Darticularlv in the case of a death-sentenced individual.

- Id. at 540(emphasis added).

Mr. Schwab's case is also more akin to cases where a defendant

enters a plea of guilty based on misrepresentations made by trial

counsel. See Wilson v. State, 2000 WL 640572 (Fla. A p p . 2"d DCA

2 0 0 0 ) (For Wilson's claim to be conclusively refuted by the record,

colloquy whether any promises were made to him concerning the

amount of time he would serve on his sentence); Cottle v. State,

733 So.2d 963 (Fla. 1999) (An inherent prejudice results from a

defendant's inability, due to counsel's neglect, to make an

informed decision whether to plea bargain, which exists

independently of the objective viability of the actual offer.) ;and

State v. Leroux, 689 So.2d 235 (Fla. 1997) (Misrepresentations by

counsel as to the length of a sentence or eligibility for gain time

can be the basis for postconviction relief in the form of leave to

withdraw a guilty plea). In Zeisler, there was no claim that the

3

reason the issue was not raised at trial or on appeal was because

his attorneys made misrepresentations. In the instant case, Mr.

Schwab explicitly stated in his 3.850 motion, at Claim XI, that his

attorneys were ineffective for failing to fully inform him that

Judge Richardson had never had the experience of sentencing a

defendant in a capital case (PC-R. 187-188). Furthermore, even in

Zeiqler, this Court allowed the newly discovered evidence to be

addressed in a 3.850 motion (when an application f o r a writ of

error coram nobis was more appropriate) to serve the ends of

justice. Id. at 540.

While the facts of Zeiqler are distinguishable from M r ,

Schwab's case, Mr. Schwab is in precisely the same conundrum as was

Mr. Zeigler. In Mr. Schwab's case, Appellee argues that the bias

of Judge Richardson should have been raised on direct appeal

(Answer Brief, page 10)' yet in his Habeas Response he argues that

the judicial bias could not have been raised on direct appeal

because of trial counsel's failure to object (Response, page 4).

To follow Appellee's reasoning would "have the unfortunate result

of leaving an appellant with no remedy when there is possible

misconduct or bias on the part of the trial judge . . . The law does not intend such unjust results, particularly in the case of a

death-sentenced individual." Zeiqler,l20 452 So.2d at 540

(emphasis added). Further, in the instant case, it was appellant's

counsel and the trial judge that caused the record on direct appeal

4

to be quiet an issue. The state specifically requested the court

to inquire of appellant incamera. However, appellant's counsel

objected and the trial court refused.

Finally, Appellee never addresses the main argument within

Appellant's Initial Brief-that Judge Richardson had a duty to

recuse himself- and that duty existed even in the absence of a

motion. Porter v. Sinqletary, 49 F.3d 1483 (1lth Cir. 1995);

Maharai v. State, 684 So.2d 726 (Fla. 1996); Canon 3C(1) of the

Florida Code of Judicial Conduct.

ARGUMENT I1

THE LOWER COURT'S DENIAL OF APPELLANT'S POSTCONVICTION MOTION WAS ERRONEOUS WHERE MR. SCHWAB PRESENTED EVIDENCE THAT HE WAS DENIED A FAIR AND IMPARTIAL TRIAL DUE TO JUDICIAL BIAS PRIOR TO AND DURING HIS TRIAL IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

Because Judge Richardson failed to recuse himself from

presiding over Mr. Schwab's trial, Mr. Schwab was denied the

fundamental right to a fair trial by a fair and impartial trier of

fact. On page 11 of Appellee's Brief, Appellee states, "When

stripped of its pretensions, this claim is nothing more than a

reargument of Claim I above. [Tlhis claim is procedurally barred,

as the lower court found, because it could have been but was not

raised on direct appeal from Schwab' s conviction and sentence. ' I

While Argument I1 is, in fact, related to Argument I, it is not a

reargument. While Argument I addressed the trial judge's duty to

5

recuse himself, Argument I1 claims that Mr. Schwab was denied a

fair and impartial trial due to the bias of the trial judge. While

the failure to afford Mr. Schwab a fair trial by a fair and

impartial trier of fact could have been raised on direct appeal

(because the assistant state attorney affidavits were part of the

record), the issue regarding misrepresentations made to Mr.Schwab

by trial counsel was not part of the record and could not have been

a direct appeal issue.

Also on page 11, Appellee argues that an “adverse ruling does

not establish bias on the part of the trial judge. See Patton v.

State, 2000 WL 1424526, SC 89.669 (September 28, 2000) . “ Yet, the

facts alleging judicial bias in Mr. Schwab’s case are

distinguishable from the facts in Patton. In Patton, the judicial

bias issue was alleged in Patton’s 3.850 motion, and the incidents

of the alleged bias only involved adverse rulings of the t r i a l and

re-sentencing judge. Id. at 10. However, in Mr. Schwab’s case, the

factual basis alleging and proving judicial bias stems mainly from

Judge Richardson’s pretrial actions and comments substantiated by

two assistant state attorney affidavits (R. 4208-4209). There is

also a thread of bias that runs throughout Mr. Schwab’s trial and

sentencing that is evidenced by adverse rulings of Judge

Richardson, e.g. failure to recuse himself from hearing a pretrial

motion in limine alleging similar fact evidence when he knew this

case would be proceeding non-jury (R. 4 4 5 3 - 4 4 5 4 ) , but the main

6

claim of bias is rooted in Judge Richardson’s pretrial words and

actions and his failure to recuse himself upon his own motion. In

Patton, this Court found the judicial bias issue was not supported

by the record. Id. at 10. Yet in Mr. Schwab‘s case, the record

clearly supports the claim of Judge Richardson’s bias.

Again, Appellee never addresses the main argument within

Argument 11-that Mr. Schwab was denied his fundamental right to a

fair trial by a fair and impartial trier of fact due to Judge

Richardson’s apparent and actual bias.

ARGUMENT I11

MR. SCHWAB DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HIS RIGHT TO A JURY TRIAL, AND THE TRIAL COURT ERRED BY DENYING MR. SCHWAB A NEW TRIAL IN VIOLATION OF MR. SCHWAB’S FOURTH, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

On page 12 of its Answer, Appellee quotes the trial court

order denying R. 3.850 relief where the court stated: “Defendant

was repeatedly cautioned about the possible ramifications of the

decision to proceed with a guilt phase non-jury trial, and if

necessary a penalty phase, These cautions came from both the judge

and trial counsel.” While Mr. Schwab was, in fact, informed of his

right to a jury trial on several occasions, and while the judge

went through a colloquy with Mr.Schwab on several occasions, these

colloquies must be viewed along with the underlying

misrepresentations that were made to M r . Schwab by his trial

7

I ’

counsel. Trial counsel told Mr. Schwab that Judge Richardson had

never sentenced anyone to death (PC-R. 2 4 ) , when in fact, Judge

Richardson had never had the opportunity to do so (PC-R.25). Mr.

Schwab was under the impression that Judge Richardson had presided

over cases where the State was seeking the death penalty but had

never elected to impose death (PC-R.144). With this thought in

mind, Mr. Schwab answered the questions in the colloquy. Further

along on page 12 and 13, Appellee states that \\[tlhe collateral

proceeding trial court‘s order is supported by the evidence, is not

clearly erroneous, and should be affirmed in all respects.”

However, the collateral proceeding trial court erred by failing to

consider the misrepresentations that were made to Mr. Schwab

regarding Judge Richardson’s sentencing habits. This evidence was

established through testimony at the evidentiary hearing (PC-R.9-

50; 76-103; 142-160). Therefore, the trial court’s order is not

supported by the evidence, is erroneous, and should be reversed.

The postconviction record is telling and reveals that Mr.

Schwab wanted to preserve all issues and maintain all of his

rights. The Friday before trial, Mr. Rhoden and Mr. Onek wanted

Mr. Schwab to plead guilty and proceed to the penalty phase (PC-

R.79). On the day of the trial Mr. Schwab indicated that he did

not want to plead guilty because Mr. Schwab wanted to preserve any

issues that he might have (PC-R. 80). This fact illustrates that

Mr. Schwab wanted to exercise all of his constitutional rights.

8

Had Mr. Schwab been aware of all of the facts regarding Judge

Richardson, he never would have waived jury trial (PC-R. 145-147) *

On page 13 of Appellee‘s brief, Appellee asserts that “Schwab

testified at the evidentiary hearing that he told the truth when he

stated to Judge Richardson that he understood his right to a jury

trial, but wanted to proceed to a non-jury trial.” Yet, this is a

mischaracterization of Mr. Schwab’s statements at the evidentiary

hearing. At the evidentiary hearing, Mr. Schwab testified during

Mr. Nunnelly‘s cross examination of him about his waiver of jury

trial and the colloquies regarding the waiver. While Mr. Schwab

said that during the colloquies he testified truthfully, he, in

fact, said that his answers were truthful but uninformed answers

(PC-R. 149-155) I

Because Mr. Schwab’s apparent waiver of jury trial was a

product of the misrepresentations made to him by his trial

attorney, his waiver was not knowingly, intelligently, or

voluntarily waived. This Court should reverse the trial court‘s

order and remand f o r a new trial.

ARGUMENT IV

THE LOWER COURT ERRED IN DENYING RELIEF ON MR. SCHWAB‘S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS AT GUILT PHASE IN VIOLATION OF HIS FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

A. DEFENSE COUNSEL FAILED TO INVESTIGATE WAIVER OF JURY TRIAL AND MADE MISREPRESENTATIONS TO MR. SCHWAB REGARDING JUDGE RICHARDSON.

9

On page 14 of Appellee‘s Answer, Appellee quotes the

collateral proceeding trial court where the court stated that

” [tlhis claim was refuted by every witness called to testify at

Defendant’s hearing on this motion.” This particular statement

shows that the collateral proceeding trial court failed to consider

all of the testimony. During the evidentiary hearing the testimony

established the following:

1. After only fifteen days on the case, James RUSSO, Public

Defender of the 18th Judicial Circuit, filed an Affidavit and

Request for Non-Jury Trial on behalf of Mr. Schwab (R. 4197-4198).

Randy Moore, Assistant Public Defender, testified that when he was

assigned to the case, he had no capital experience, he couldn’t

recall receiving any discovery, he hadn’t utilized any

investigative services, hadn‘t contacted any experts, could not

recall reviewing any evidence, hadn’t talked to any witnesses, yet

he still proceeded to obtain a waiver of jury trial from Mr. Schwab

(PC-R. 129-136). In fact, when Mr. Moore went to speak to Mr.

Schwab regarding waiver of jury trial, Mr. Moore already had a

written waiver of jury trial form in hand (PC-R. 135-136). Mr,

Moore’s decision was based solely on a booking report and news

articles. Obviously he believed these reports without any

investigation into the case.

2. Maureen Alva, then the Chief Assistant Public Defendant

and the most experienced attorney in the office, advised that a

10

jury trial be waived, which was ignored (PC-R. 122).

3. Mr. Onek admitted that he didn‘t do any research as to

who was more likely to sentence to death - - a judge or a jury (PC-

R. 96).

4. Mr. Onek testified that this case was his first capital

case that went to trial (PC-R. 11); the publicity of the case was

of no consideration to him in seeking a non-jury trial (PC-R. 15) ;

that because the case was proceeding to a non-jury trial the issue

of change of venue was not discussed (PC-R. 1 7 , 2 4 ) ; he did not make

any specific request of Mr. Schwab’s jail records (PC-R. 19)’ which

would have indicated that Mr. Schwab was on medication; that he

knew that Judge Richardson had never presided over a death case

before (PC-R. 25-26); that he would not refute Mr. Schwab’s

testimony that he told Mr. Schwab that Judge Richardson had never

sentenced anyone to death before (PC-R. 27) ; that he knew about the

affidavits asserting that Judge Richardson had “made a gesture of

pulling a trigger on a gun or firing a gun,” regarding Mr. Schwab

(PC-R. 27); that regardless of the affidavits “we wanted Judge

Richardson to be the trier of fact” (PC-R. 31).

While the decision to waive a jury trial was Mr. Schwab’s

alone to make (with the advice of his trial counsel), his trial

counsel’s advice was based on misinformation and a lack of

preparation.

On page 14 of Appellee’s Answer, Appellee states that trial

11

counsel testified “that he made no misrepresentations to Schwab in

order to convince him to waive a jury.” Yet, that is not an

accurate summary of the testimony from the evidentiary hearing. At

the hearing the following occurred:

DIRECT EXAM OF MR. ONEK BY MR. REITER:

Q.

A ,

Q.

A.

Q .

A .

Q.

Do you have any recollections of discussing Judge Richardson with Mr. Schwab?

Yes.

Did you ever tell him that Judge Richardson had never sentenced anyone to death?

I believe we-that would have been part of our conversation, yes.

At that time, do you have knowledge of whether o r not Judge Richardson had ever had a capital case that went to a jury trial where someone was found guilty and they went into the penalty phase?

It’s-I reviewed your motion and I don‘t know if my memory is based on your motion or not, but my memory-from-my memory as to what I understood at that time was that Judge Richardson was an unknown entity on the bench.

Well isn’t that then a misrepresentation to M r . Schwab in the fact that if he-isn‘t that the same as saying that youlve never sentenced anybody to death, when the fact is that you have no knowledge of the fact that the judge had never had that trial, and to tell a Defendant that the judge had never sentenced anybody to death is a misrepresentation?

MR. NUNNELLEY:

12

Objection. . It’s compound and also argumentative, Your Honor.

THE COURT: Objection sustained. Rephrase, please.

BY Q .

A.

Q.

A.

Q.

A.

Q.

‘ 1 MR. REITER: Would you consider telling someone that a judge has never sentenced anybody to death, knowing yourself that the judge had never had a case to do so, is a misrepresentation?

I don’t think that-I hope I didn’t misunderstand your initial question. My initial response was that part of our conversation about Judge Richardson was what we knew about Judge Richardson. I don’t think I was telling you that I told Mark he had never sentenced anyone to death, and that’s what we said about him. I told Mark what we did know about the other judges in the circuit. And what we knew about Judge Richardson, although limited in scope, was favorable comparative to the other judges who were on the criminal bench at the time. So I don‘t know how else to answer that. I don‘t think I specifically said, “Mark, he‘s never sentenced anyone to death,” and left out that, ‘but he’s never had a chance. ”

Do you have a specific recollection of not having said that or having said that?

What we knew about Judge Richardson was that he was new to the criminal bench at that time. He was an extremely intelligent man. It was our understanding that he was fairly-

I appreciate that.

Well, I’m-so-

I ’ m asking if you have a specific recollection as to whether or not you

13

told Mark Schwab that the judge had never sentenced anybody to death.

A . I don't remember ever saying that.

Q. Okay. If Mr. Schwab were to take the stand and testify that you told him that, would you refute that?

A. I could not say that that would be untrue either. I ' m just saying I don't remember saying that.

(PC-R. 2 4 - 2 7 ) .

Whether the misrepresentations were intentional or negligent

is up for debate; however, it is clear that the misrepresentations

misled Mr. Schwab into thinking that Judge Richardson had tried

capital cases where death was possible, but where Judge Richardson

had elected not to impose death (PC-R. 144).

On page 15 of Appellee's Answer, Appellee states "counsel

clearly had a reasonable basis for recommending that Schwab waive

a jury trial, and even the one lawyer witness who disagreed with

that strategy testified that she could see the logic of waiving the

jury.'' However, this argument fails to take into consideration the

misinformation under which Mr. Schwab was operating-that Judge

Richardson had never sentenced anyone to death.

Trial counsel had a duty to investigate and communicate to Mr.

Schwab a l l options and consequences of waiving a jury trial. Trial

counsel also had a duty to make sure that Mr. Schwab understood the

facts regarding Judge Richardson's sentencing habits and the

options and consequences of waiving jury trial. Failure to do this

14

denied Mr. Schwab effective assistance of counsel and denied him

his fundamental right to a jury trial. Because of

ineffectiveness and because Mr. Schwab was denied

constitutional rights, Mr. Schwab was prejudiced.

B. DEFENSE COUNSEL FAILED TO MOVE FOR CHANGE OF VENUE.

On page 16 of Appellee’s Answer, Appellee states

this

his

the

following:

. . .Schwab waived the right to a jury trial. He has not, however, explained how a motion for change of venue would have been appropriate given that waiver, nor has he alleged either deficient performance or prejudice as a result of counsel‘s ‘failure‘ to seek a change of venue for a non-jury trial.

While Mr. Schwab waived his right to a jury trial, his waiver

was not knowingly, intelligently, nor voluntarily made. Mr. Schwab

gave up his right to a jury trial based on his trial counsel’s

misrepresentations to h i m that Judge Richardson had never sentenced

anyone to death (PC-R. 144-146), when in fact Judge Richardson had

never had the opportunity to do so (PC-R.79). By waiving the right

to a jury trial, it follows that requesting a motion for change of

venue is waived also. However, .it also follows that if the waiver

of jury trial was not knowingly, intelligently, nor voluntarily

made, then the waiver a request for change of venue is a l so not

knowing, intelligent or voluntary.

Mr. Schwab’s trial attorneys had a duty to investigate and to

inform Mr. Schwab of the option of a request f o r change of venue.

15

I .

T h e adversarial testing process generally will not function

properly unless defense counsel has done some investigation into

the prosecution‘s case and into various defense strategies.

Kimmelman v. Morrison, 477 U.S. 365 ( 1 9 8 6 ) Such an investigation

includes, at a minimum, an independent examination of the relevant

facts, circumstances, pleadings and laws. Mulliqan v. Kemp, 771

F.2d 1436, 1442 (llth Cir. 1985) (quoting Rummel v. Estelle, 590 F.2d

1 0 3 , 104 (5th Cir. 1 9 7 9 ) ; see also Nealv v. Cabana, 764 F . 2 d 1173,

1178 (5th Cir. 1985) (counsel did not pursue a strategy, but ”simply

failed to make the effort to investigate”).

Counsel’s failure to investigate or even consider the

potential bias of Judge Richardson and the ability to move to

change venue in order to voir dire a jury in another location

denied Mr. Schwab effective assistance of counsel and prejudiced

the outcome of his trial.

C. DEFENSE COUNSEL MADE MISREPRESENTATIONS TO MR. SCHWAB, THEREBY PREVENTING HIM FROM SEEKING TO RECUSE JUDGE RICHARDSON.

On page 18 Appellee states the following:

Moreover, Schwab was questioned under oath as to whether he desired to seek Judge Richardson’s recusal. He stated, unequivocally, that he was aware of the contents of the “state attorney affidavits” , that he was aware of the option of seeking Judge Richardson‘s recusal, that he did not desire to do so, and that he still believed that a non-jury trial was in his best interest. (R1477 et seq). At the evidentiary hearing, Schwab testified that he understood that a motion to disqualify the judge was

l b

available, but he did not want to file one. (R.148;150). Because of that testimony, it is clear that this claim has no basis in fact.

Yet, during this same testimony, Mr. Schwab also explained

that his answers were truthful, yet uninformed (PC-R. 151, 153-

154). During the colloquy with the trial judge, Mr Schwab was

under the impression that Judge Richardson had presided over death

cases, but had never sentenced anyone to death (PC-R. 144). His

trial attorneys had told him that Judge Richardson had never

sentenced anyone to death (PC-R.144-145). These misrepresentations

that trial counsel made to Mr. Schwab prevented him from seeking

Judge Richardson's removal from the case (PC-R.145). Not only were

Mr. Schwab's attorneys ineffective for misrepresenting Judge

Richardson's sentencing record, they were also ineffective for

failing to move f o r his recusal.

D. DEFENSE COUNSEL FAILED TO ENSURE THAT A RELIABLE TRANSCRIPT OF MR. SCHWAB'S PRETRIAL PROCEEDINGS AND CAPITAL TRIAL WAS PREPARED AND FAILED TO DESIGNATE THAT ALL PROCEEDINGS BE TRANSCRIBED FOR APPELLATE REVIEW.

On page 19 Appellee claims that "Schwab has not demonstrated

any deficiency on the part of trial counsel with respect to the

contents of the record on appeal, nor has he demonstrated (or

attempted to demonstrate) how he was prejudiced."

While the collateral proceeding trial judge and Appellee

indicated that the July 3, 1991 hearing transcript regarding the

judicial bias claim were a part of the trial court file (Answer

17

Brief, page 181, the transcript was not included by trial counsel

in his designation to the court reporter (R. 4682-4685). Also not

included were the "State's Questions for In Camera Inquiry." In

fact, post-conviction counsel had to move to supplement the record

on appeal with these two items, and the record was, in fact,

supplemented by Florida Supreme Court Order dated August 21, 2000.

Appellate counsel's performance was, in fact, substandard as

he failed to ensure a complete record for review on direct appeal

by failing to include these two items.

Florida recognizes the right of a defendant who has been

convicted of first degree murder and sentenced to death to a

complete review of his conviction and sentence. Delap v. State,

350 So.2d 462 (Fla. 1977). In addition, Article V, Section 3 ( b ) (1)

of the Florida Constitution, Section 921.141 of the Florida

Statutes, and Rule 9.030(a) (1) (A) (i) also ensure this right. In

order to ensure the defendant's right to a complete review, a

complete and reliable record is required. Florida Rule of

Appellate Procedure 9.140 (b ) ( 6 ) (A) requires, in death penalty

cases, that " * . .the chief justice will direct the appropriate chief

judge of the circuit court to monitor the preparation of the

complete record for timely filing in the supreme court." The due

process constitutional right to receive trial transcripts for use

at the appellate level was acknowledged by the United States

Supreme Court in Griffin v. Illinois, 351 U.S. 212 ( 1 9 5 6 ) . An

18

accurate trial transcript is crucial for adequate appellate review.

~ Id. at 219.

However, in Mr. Schwab’s direct appeal to the Florida Supreme

Court of his conviction and sentence of death, he was denied his

right to a complete review based on a complete and reliable record.

His trial counsel failed to ensure that the Florida Supreme Court

had a complete and reliable record. Mr. Schwab was prejudiced by

these omissions because he was denied his right to a complete

review of his conviction and sentence. In addition, two omissions

in the record relate to the state habeas claim of ineffective

assistance of appellate counsel f o r failure to raise the issue of

judicial bias on direct appeal.

ARGUMENT V

THE LOWER COURT’S RULING FOLLOWING THE POSTCONVICTION EVIDENTIARY HEARING WAS ERRONEOUS WHERE MR. SCHWAB PRESENTED EVIDENCE THAT HE WAS DENIED EFFECTIVE ASSISTANCE AT THE PENALTY PHASE OF HIS TRIAL IN VIOLATION OF HIS FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.

A. DEFENSE COUNSEL PRESENTED MR. SCHWAB’S FATHER AS A MITIGATION WITNESS KNOWING THAT MR. SCHWAB‘S FATHER WOULD DENY CHILDHOOD ABUSE.

Appellee on page 21 of Appellee‘s Answer responds that trial

counsel presented “both of Schwab’s parents because he felt the

court needed the full picture of Schwab’s background. ( R 9 6 ) . That

is a reasonable strategic decision, and, as such, is not subject to

second-guessing in collateral attack.‘’ Mr. Onek knew that the

19

In testimony would contradict the mother's ( P C - R . 94-96).

particular, Mr. Onek knew that Mr. Schwab's mother would testify

that there were physical altercations between her and her husband,

that her husband would hit her and push her to the ground and that

on one occasion he gave her a black eye (R. 3111). Mr. Schwab's

mother also testified that Mr. Schwab's father would "force Mark

down on the f l o o r and strip him from the waist down and then laugh

and say that he was just doing it as a joke" (R. 3107-3113) Yet,

M r . Onek also presented M r . Schwab's father who contradicted his

ex-wife's testimony by saying that he never struck his wife, he

only "restrained her" (R. 3031). This t y p e of contradictory

testimony cannot be characterized as "strategic," especially when

Mr. Schwab's father (who abused Mr. Schwab and Mr. Schwab's mother)

would have a motive to lie.

Further along on page 21 Appellee states that "this matter

presented a square credibility choice for the finder of fact-the

fact that credibility choice was resolved adversely to Schwab does

not create a basis for relief." However, trial counsel, by

knowingly presenting mutually exclusive testimony, caused the trial

court to have to make that "credibility choice.'' Such action was

ineffective assistance of counsel and prejudiced Mr. Schwab's case.

B. DEFENSE COUNSEL FAILED TO INVESTIGATE THE WAIVER OF THE PENALTY PHASE JURY.

On page 22 Appellee asserts that "the waiver of the penalty

phase jury, while ultimately Schwab's decision, was a valid (and

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phase jury, while ultimately Schwab’s decision, was a valid (and

well-considered) trial strategy that was not unreasonable.”

Trial counsel’s decision should not be characterized as “well-

considered” especially under the circumstances in which it was

waived. The record supports Mr. Schwab‘s claim that trial counsel

failed to investigate and adequately advise Mr. Schwab regarding

waiver of jury trial at the penalty phase. The Brevard County

Public Defender‘s Off ce was first assigned to the case on April

30, 1991 ( R . 4193-4194). After only fifteen days on the case,

James Russo, Public Defender of the 18‘h Judicial Circuit, filed an

Affidavit and Request for Non-Jury Trial on behalf of Mr. Schwab

( R . 4197-4198). During the evidentiary hearing Randy Moore,

Assistant Public Defender, testified that he was initially assigned

to Mr. Schwab’s case (PC-R. 130). When he was assigned to the

case, he had no capital experience, he couldn‘t recall receiving

any discovery, he hadn‘t utilized any investigative services,

hadn‘t contacted any experts, could not recall reviewing any

evidence, hadn’t talked to any witnesses, but he proceeded to

obtain a waiver of jury trial from Mr. Schwab (PC-R. 129-136). In

fact, when Mr. Moore went to speak to Mr. Schwab regarding waiver

of jury trial, Mr. Moore already had a written waiver of jury trial

form in hand (PC-R. 135-136). When Mr. Onek was assigned to the

case, he testified that he had the authority to ask for a jury

trial anew (PC-R. 18).

21

Judge Richardson try the case without a jury and to conduct the

penalty phase without a jury, even though trial counsel knew

nothing of Judge Richardson. M r . Onek testified that "Judge

Richardson was an unknown entity on the bench," (PC-R. 25) that he

was new to the bench, and they did not know how Judge Richardson

"would sentence someone in a death case."(PC-R. 86). Had Mr.

Schwab's trial attorneys investigated Judge Richardson, they also

would have found that Judge Richardson had never handled a case

where the jurv had been waived in a felonv case (PC-R. 62) (emphasis

added . Further, Mr. Onek agreed at the evidentiary hearing that

with a jury trial you get "two bites at the apple" in that you

would have a jury recommendation followed by the judge's sentence

(PC-R. 102-103).

Waiver of the penalty phase jury under the above circumstances

violated Mr. Schwab's right to effective assistance of counsel and

had a prejudicial effect on Mr. Schwab's case.

C. DEFENSE COUNSEL FAILED TO NEUTRALIZE THE STATE'S AGGRAVATING CIRCUMSTANCES BY FAILING TO INVESTIGATE MR. SCHWAB'S PRIOR CONVICTION AND BY STIPULATING TO TWO AGGRAVATING CIRCUMSTANCES.

On page 22 Appellee addresses Mr. Schwab's claim regarding

counsel's stipulation to an aggravator and states, " [TI he most that

demonstrates is a recognition of the obvious, given that Schwab had

already been convicted. (R2079-80) . " However, trial counsel, at the very least, could have held the State to its burden of proving each

aggravator beyond a reasonable doubt. & Nixon v. Sinsletarv, 758

22

So.2d 618, 625 (Fla. 2000). This should have been done in Mr.

Schwab's case.

On page 2 3 Appellee responds to the State's use of non-

statutory aggravation with the following:

To the extent that Schwab complains that Dr. Samek's testimony allowed the State to present non-statutory aggravation, that claim has no legal basis. The fact that Schwab re-offended shortly after being released from prison is clearly relevant, is not "non-statutory aggravation", and is not a basis for relief. (R1123).

Dr. Samek was presented by the prosecution as their mental

health expert and testified as to Mr. Schwab's lack of remorse for

the crime (R. 3374-3375). He noted that while Mr. Schwab was in

prison he showed tremendous remorse for the prior offense, but t h a t

this didn't stop him once he got out (R. 3374-3375). This C o u r t

has held that lack of remorse is a nonstatory aggravating

circumstance and cannot be considered in a capital sentencing. See

Colina v. State, 570 So.2d 929 (Fla. 1990); Trawick v. State, 473

So.2d 1235 (Fla. 1985); and Pope v. State, 441 So.2d 1073 ( F l a .

1 9 8 3 ) . Counsel for Mr. Schwab failed to object to this

characterization and so effectively allowed the state to bolster

their case with a non-statutory aggravating circumstance.

D. DEFENSE COUNSEL FAILED TO PROVIDE THE ASSISTANCE OF A COMPETENT MENTAL HEALTH EXPERT.

The collateral proceeding trial court denied relief based on

this claim because Mr. Schwab presented no evidence to support this

23

this claim because Mr. Schwab presented no evidence to support this

claim (PC-R 1257). Appellee responds to this denial in his Answer

on page 23 by stating, “While it is true that the court denied

Schwab’s last-minute motion for a continuance, it is also true that

Schwab had known for months when he would be expected to go forward

with expert testimony. (R1243) . “

As was discussed in Mr. Schwab‘s initial brief, Dr. Faye

Sultan was retained to examine Mr. Schwab, After her examination,

Dr. Sultan recommended that Mr. Schwab be examined by Dr. Berlin

because of his greater expertise (PC-R. 1239). Dr. Berlin,

however, refused to participate without adequate time to prepare

(PC-R. 1240) * It was after this recommendation that post

conviction counsel filed a motion to continue the evidentiary

hearing (PC-R. 1239). Judge Holcomb denied the motion without a

hearing (PC-R. 1243). The trial court’s denial of this motion and

this claim was error.

ARGUMENTS VI - XI

In reply to Appellee‘s Answer Brief, Appellant relies on the

argument set forth in Arguments VI - XI in his initial Brief

appealing denial of his Rule 3.850 Motion.

CONCLUSION AND RELIEF SOUGHT

Based on the forgoing, the lower court improperly denied Mr.

Schwab’s Rule 3.850 relief. This Court should order that his

conviction and sentence be vacated and remand the case for a new

2 4

trial, new evidentiary hearing, or f o r such re l ief as the Court

deems proper .

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CERTIFICATE OF FONT SIZE AND SERVICE

I HEREBY CERTIFY that a true copy of the foregoing REPLY

BRIEF OF APPELLANT, which has been typed in Courier, Font Size

12, has been furnished by United States Mail, first-class postage

prepaid, to all counsel of record on January sp”E- , 2001.

kobert T.- Strain

ar No. 0648833 Assistant CCRC

CAPITAL COLLATERAL REGIONAL

3801 Corporex Park Drive Suite 210 Tampa, FL 33619-1136

COUNSEL FOR APPELLANT

COUNSEL - MIDDLE REGION

(813) 7 4 0 - 3 5 4 4

Copies furnished to:

The Honorable Charles M. Holcomb Titusville Courthouse 506 South Palm Avenue Titusville, FL 32796

Kenneth S. Nunnelley Assistant Attorney General Office of t h e Attorney General 444 Seabreeze Boulevard 5t” Floor Daytona Beach, FL 32118-3951

Robert Wayne Holmes Assistant State Attorney Office of the State Attorney 2725 Judge Fran Jamieson Way Building D Viera, FL 32940

Mark Schwab DOC# 111129; P2224S Union Correctional Institution Post Office Box 221 Raiford, FL 32083

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